Abdi Ali Aden v. Robert Wilkinson

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ABDI ASIS ALI ADEN, No. 17-71313

Petitioner,

Agency No.

v. A208-307-454

ROBERT M. WILKINSON, Acting

Attorney General, OPINION

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted November 6, 2019 *

Portland, Oregon

Filed March 4, 2021

Before: Richard A. Paez and Johnnie B. Rawlinson,

Circuit Judges, and George H. Wu, ** District Judge.

Opinion by Judge Paez;

Concurrence by Judge Rawlinson

*

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

**

The Honorable George H. Wu, United States District Judge for

the Central District of California, sitting by designation.

2 ADEN V. WILKINSON

SUMMARY ***

Immigration

Granting Abdi Ali Asis Aden’s petition for review of the

Board of Immigration Appeals’ dismissal of his appeal of an

Immigration Judge’s denial of his applications for asylum

and withholding of removal from Somalia, and remanding,

the panel held that the Board erred in concluding that Aden

did not qualify for an exception to the firm resettlement bar,

and that the evidence compelled the conclusion that he

suffered past persecution in Somalia on account of a

protected ground.

Aden asserted that he suffered persecution in Somalia by

members of Al-Shabaab, a militant terrorist organization

affiliated with Al-Qaeda and the Islamic State, after his

brother refused their orders to shut down his theater showing

American and Hindi movies and sports, which Al-Shabaab

viewed as “Satanic” movies. The Board concluded that

Aden was ineligible for asylum because he was firmly

resettled in South Africa, and that he failed to establish that

he suffered past persecution in Somalia on account of a

protected ground.

The Board noted that Aden presented “ample evidence”

of persecution in South Africa, but nonetheless determined

that he failed to qualify for the restricted-residence exception

to the firm resettlement bar because the persecution he faced

was at the hands of private individuals, rather than the South

***

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

ADEN V. WILKINSON 3

African government. The panel concluded that the Board

erred in doing do, holding that the restricted-residence

exception applies when the country’s authorities are unable

or unwilling to protect the applicant from persecution by

nongovernment actors.

The panel held that the evidence compelled the

conclusion that Aden suffered past persecution in Somalia,

where in addition to physically beating Aden, members of

Al-Shabaab kept tabs on him by contacting his brother and

warned they would kill Aden and his brother if they

continued to disobey Al-Shabaab’s command to close their

theater. The panel wrote that the chain of events revealed

that Al-Shabaab intended to coerce Aden to submit to its new

political and religious order, and used offensive strategies—

beatings, destruction of property, and death threats—to

achieve this goal. Further, the panel explained that

continuing political and social turmoil caused by Al-

Shabaab provided context for the harm and death threats that

Aden experienced, which together with the past harm,

compelled the conclusion that he suffered past persecution

in Somalia.

The panel held that substantial evidence did not support

the Board’s determination that Aden failed to establish that

he was targeted on account of a protected ground because Al

Shabaab was motived by their own political and religious

beliefs, rather than Aden’s. The panel explained that Al-

Shabaab’s accusation that the brothers were featuring

Islamically forbidden, “Satanic” films provided direct

evidence of their political and religious motive, and that even

if the brothers did not feature the films out of their own

political or religious convictions, Al-Shabaab at the very

least imputed those beliefs to them. The panel wrote that the

only logical explanation for Al-Shabaab’s treatment of Aden

4 ADEN V. WILKINSON

and his brother was that their actions were subversive to Al-

Shabaab’s political and religious doctrine.

The panel remanded for the Board to consider, under the

appropriate framework, whether Aden was firmly resettled

in South Africa, and to give the government an opportunity

to rebut the presumption of future persecution triggered by

Aden’s showing of past persecution on account of a

protected ground.

Concurring, Judge Rawlinson agreed that the case

should be remanded for reconsideration of the firm

resettlement issue. Judge Rawlinson noted that despite the

fact that the IJ never addressed the issue of whether

persecution by private actors may prevent application of the

firm resettlement bar, the Board concluded that the firm

resettlement bar applied to Aden because he did not

introduce any evidence that the South African government

imposed any restrictions on his residency such that the

restricted-residence exception applied. Judge Rawlinson

wrote that the Board’s conclusion was not supported by

substantial evidence in the record, as reflected in the IJ’s

factual findings. Judge Rawlinson also agreed that the Board

erred in concluding that Aden failed to establish a nexus to a

protected ground because, based on binding precedent, an

applicant such as Aden, who disagrees with Al Shabaab’s

view of the proper interpretation of Islam, can establish

persecution on account of a protected ground by showing

that others in his group persecuted him because they found

him insufficiently loyal or authentic to the religious ideal

they espouse.

ADEN V. WILKINSON 5

COUNSEL

Emery El Habiby, El Habiby Law Firm, Sun City, Arizona,

for Petitioner.

Stephen J. Flynn, Assistant Director; Lynda A. Do,

Attorney; Office of Immigration Litigation, Civil Division,

United States Department of Justice, Washington, D.C.; for

Respondent.

OPINION

PAEZ, Circuit Judge:

Abdi Ali Asis Aden petitions for review of the Board of

Immigration Appeals’ (the “BIA” or “Board”) dismissal of

his appeal of an Immigration Judge’s (“IJ”) denial of his

applications for asylum and withholding of removal from

Somalia. Aden challenges the Board’s determination that he

firmly resettled in South Africa and did not experience

persecution in Somalia. We have jurisdiction under 8 U.S.C.

§ 1252. We grant the petition for review and remand.

I. Factual and Procedural Background 1

Aden is a native and citizen of Somalia. He was born in

Beledweyne, Somalia, and practices a form of Islamic

mysticism known as Sufism. He contends he suffered

persecution under Al-Shabaab, a militant terrorist

organization affiliated with Al-Qaeda and the Islamic State,

which took control of Beledweyne. The group maintained

1

The factual background is drawn from the IJ’s decision and Aden’s

credible testimony at his merits hearing.

6 ADEN V. WILKINSON

an active presence in the area surrounding Beledweyne and

much of southern Somalia.

After graduating high school, Aden began to work in a

nearby theater owned by his brother. The theater featured

American and Hindi movies and sports. On two occasions

in late 2010, members of Al-Shabaab visited the theater and

ordered Aden’s brother to shut down the theater and stop

screening, in their view, “Satanic” movies. Aden was not

present during these encounters, but his brother later told

him about them.

The brothers did not heed the instructions. A month

later, ten armed members of Al-Shabaab raided the theater

while Aden and his brother were working. For the next

twenty minutes, the armed men beat the theater employees

and patrons with sticks. After the patrons fled, the raiders

turned their attention to the remaining workers, including

Aden and his brother. They struck Aden in the head with the

butt of a rifle, causing him to bleed profusely. When they

left, they confiscated the equipment used to screen the

movies.

Immediately after the incident, Aden and his brother hid

in their uncle’s house in Beledweyne. Two weeks later,

members of Al-Shabaab contacted Aden’s brother and

warned him that if he reopened the theater, they would kill

both him and Aden. Aden and his brother did not reopen the

theater, deciding instead to hide at their uncle’s house until

they gathered enough money to escape Somalia.

In January 2011, Aden fled Somalia and, over the next

two months, made his way to South Africa. Upon his arrival,

he was granted asylum and given permission to work. He

worked and lived in a store owned by his cousin. To

ADEN V. WILKINSON 7

maintain legal status, he needed to renew his asylum

documentation several times.

Aden spent four difficult years in South Africa. He

testified about three incidents in which he was the target of

xenophobic attacks directed at Somali immigrants. In

December 2012, a group of anti-immigrant protestors

entered the store in which he worked, beat him with wooden

sticks and other tools, and broke and stole merchandise.

Once they finished ransacking, the protestors set fire to the

store, requiring it to be rebuilt.

The second incident occurred one night in March 2013.

Aden was sleeping inside the store with his cousin. He woke

up to a noise and found three to four men had broken into

the store. The intruders beat Aden and his cousin with

wooden sticks, forced them to lie on the ground, and stole

money and phone cards. During the incident, the men

accused Aden of being an “illegal alien” and told him he had

“no right to this business.” Aden reported the incident to

South African law enforcement, but they did nothing to

follow up or investigate.

The third and final incident took place in December

2014. While Aden was working, two men brandishing guns

went to the store and threatened to kill him. Aden gave them

money, phones, and phone cards. They told him, “you are

Somalis [and] [y]ou do not have rights to . . . this country,

and you don’t have . . . rights to enter.” Aden reported this

incident to the South African police but, again, they did

nothing to follow up or investigate.

As a result of these incidents, Aden fled yet again in

2015. He managed to travel to the United States, and upon

arriving at the San Ysidro port of entry he applied for

asylum, withholding of removal from Somalia and South

8 ADEN V. WILKINSON

Africa, and protection under the Convention Against

Torture.

The IJ denied Aden’s applications for relief and found

him removable as charged. Although the IJ found Aden

credible, he concluded that Aden was ineligible for asylum

because he had “firmly resettled” in South Africa. In

reaching this conclusion, the IJ first determined that Aden

had been offered permanent resettlement because he had no

difficulty finding work or a place to reside, received refugee

status and, after a certain amount of time, could have sought

a permanent immigration permit. Further, the IJ determined

Aden did not qualify for an exception to the firm-

resettlement bar because, in part, he did not show that the

conditions of his residence were too restricted for him to be

firmly resettled. In determining that Aden had firmly

resettled, the IJ did not discuss or consider Aden’s claims of

persecution as a Somali refugee by native South Africans. 2

The IJ alternatively determined that Aden was ineligible

for asylum in the United States because he did not establish

that, while in Somalia, he experienced past persecution or

that he had a well-founded fear of future persecution on

account of a protected ground. In reaching this

determination, the IJ reasoned that the “one-time” beating at

the theater did not amount to persecution, and, even if it did,

Aden failed to show it was on account of his religion or

political opinion. Further, the IJ concluded that because the

movie theater no longer existed in Somalia, Aden failed to

establish he had a well-founded fear of future persecution.

The IJ also found that Al-Shabaab remained a major force in

2

The IJ did, however, determine that Aden was entitled to

withholding of removal from South Africa on the basis of past

persecution, as discussed below.

ADEN V. WILKINSON 9

Somalia and a danger to many, including in the region Aden

is from, but ultimately concluded it was insufficient to

demonstrate Aden had a well-founded fear of persecution

because it amounted only to “general strife and violence in

Somalia.” Accordingly, the IJ denied Aden’s request for

withholding of removal from Somalia.

The IJ did, however, conclude that Aden was eligible for

withholding of removal from South Africa because the harm

Aden faced rose to the level of persecution. In making this

determination, the IJ pointed to the three xenophobic

incidents about which Aden testified, found that the

incidents occurred on account of his nationality as a Somali

immigrant, and determined that the South African

government was unable or unwilling to control such

violence. Last, the IJ determined that the government failed

to rebut the presumption of Aden’s well-founded fear of

persecution in South Africa by showing that he could

relocate internally or that the conditions there had changed.

Aden appealed the IJ’s decision to the BIA. The Board

agreed that Aden presented “ample evidence” that he

suffered persecution in South Africa, but nonetheless upheld

the IJ’s conclusion that Aden firmly resettled there. The

Board stated that Aden did not qualify for a firm-

resettlement exception because he was persecuted by

nongovernment actors. The Board also upheld the IJ’s ruling

that Aden was ineligible for asylum from Somalia because

he did not demonstrate past persecution or a well-founded

fear of future persecution on account of a protected ground.

In light of that conclusion, the Board also upheld the IJ’s

denial of Aden’s application for withholding of removal

from Somalia.

10 ADEN V. WILKINSON

Aden timely petitioned for review of the Board’s

determination that he firmly resettled in South Africa and

was not persecuted in Somalia.

II. Standard of Review

We examine the Board’s “legal conclusions de novo and

its factual findings for substantial evidence.” Arrey v. Barr,

916 F.3d 1149, 1157 (9th Cir. 2019) (citation omitted). A

factual finding is “not supported by substantial evidence

when any reasonable adjudicator would be compelled to

conclude to the contrary based on the evidence in the

record.” Bringas-Rodriguez v. Sessions, 850 F.3d 1051,

1059 (9th Cir. 2017) (en banc) (citation and quotation marks

omitted).

III. Firm Resettlement

An applicant who is firmly resettled is ineligible for

asylum. 8 U.S.C. § 1158(b)(2)(A)(vi). The IJ concluded,

and the Board agreed, that Aden did not qualify for asylum

because he had firmly resettled in South Africa and did not

meet an exception to the firm-resettlement bar. Aden argues

the Board erred in concluding he is not eligible for an

exception to the firm-resettlement bar. We agree.

To determine whether substantial evidence supports the

agency’s finding that an applicant has not firmly resettled in

a third country, we first determine whether the government

presented evidence that the applicant received an offer of

permanent resettlement. Arrey, 916 F.3d at 1159 (citing

Maharaj v. Gonzales, 450 F.3d 961, 976–77 (9th Cir. 2006)

(en banc)); 8 C.F.R. § 208.15. If the government establishes

that an applicant has firmly resettled, we then look to

whether the applicant qualifies for either of two exceptions

to the firm-resettlement bar. Arrey, 916 F.3d at 1159. One

ADEN V. WILKINSON 11

such exception—what we refer to as the “restricted-

residence exception”—applies when the applicant “show[s]

that . . . the conditions of [the applicant’s] residence [were]

too restricted[] for [the applicant] to be firmly resettled.” Id.

(quoting Maharaj, 450 F.3d at 976–77); 8 C.F.R.

§ 208.15(b). 3 The regulation provides that the restricted-

residence exception applies when the applicant shows that

the living restriction was (1) “substantial[],”

(2) “conscious[],” and (3) “by” the country’s authorities.

8 C.F.R. § 208.15(b). In making this determination, courts

consider the conditions under which other residents of the

country live, the type of housing offered to the applicant, and

the extent to which the applicant enjoyed privileges like

employment or education. See id.

Aden argues he qualifies for the restricted-residence

exception to the firm-resettlement bar because the

persecution he suffered in South Africa sufficiently

restricted his living conditions. The IJ concluded that Aden

had been persecuted in South Africa because of his status as

a Somali immigrant and was thus entitled to withholding of

removal from South Africa. The Board likewise agreed that

Aden presented “ample evidence” of persecution in South

Africa, but nonetheless determined he failed to qualify for

the restricted-residence exception because the persecution

he faced was at the hands of private individuals, rather than

the South African government.

The key question here is thus whether the restricted-

residence exception applies when the country’s authorities

are unable or unwilling to protect the applicant from

3

The other recognized exception—whether the applicant remained

in the country “only as long as was necessary to arrange onward travel,”

§ 208.15(a)—is not at issue here.

12 ADEN V. WILKINSON

persecution by nongovernment actors. See 8 C.F.R.

§ 208.15(b). We conclude it does, and the Board legally

erred in deciding otherwise.

First, there is no doubt that persecution is a

“substantial[]” restriction of one’s residence. See Arrey,

916 F.3d at 1159–60; Siong v. INS, 376 F.3d 1030, 1040 (9th

Cir. 2004); E. Bay Sanctuary Covenant v. Barr, 964 F.3d

832, 847 (9th Cir. 2020). As we have recognized, the firm-

resettlement bar ensures that “if [the United States] denies a

refugee asylum, the refugee will not be forced to return to a

land where he would once again become a victim of harm or

persecution.” E. Bay Sanctuary Covenant, 964 F.3d at 847

(quoting Andriasian v. INS, 180 F.3d 1033, 1046–47 (9th

Cir. 1999)). Such an outcome, we have explained, “would

totally undermine the humanitarian policy underlying the

regulation.” Id. (quoting Andriasian, 180 F.3d at 1046–47).

Indeed, “[t]he regulatory definition of firm resettlement

captures the oft-repeated understanding that asylum is not

granted to aliens who have found a haven from persecution.”

Siong, 376 F.3d at 1040 (quoting Ali v. Reno, 237 F.3d 591,

595 (6th Cir. 2001)).

Second, a restriction is “conscious[]” if the persecutors

act knowingly. 4 No one contests—either here or before the

agency—that Aden’s persecutors acted knowingly.

The only remaining issue is thus whether a government’s

failure or unwillingness to protect a person from private

persecution is a restriction “by” the country’s authorities.

4

To be “conscious” means simply to “hav[e] awareness” or

“knowledge.” Conscious, Oxford English Dictionary (3d ed. 2011),

https://www.oed.com/view/Entry/39475?redirectedFrom=conscious&

(last visited Dec. 4, 2020).

ADEN V. WILKINSON 13

Our precedent recognizes that it is. In Siong, we evaluated

the BIA’s denial of an asylum applicant’s motion to reopen

his case on the ground that he had received ineffective

assistance of counsel in his removal proceeding. 376 F.3d at

1036–42. Part of that inquiry required the court to determine

whether the petitioner had demonstrated prejudice, which, in

turn, required a further determination of whether he had

alleged a “plausible” ground for relief. Id. at 1037–42. The

IJ concluded, and the Board agreed, that the petitioner had

firmly resettled in France. Id. at 1038.

The petitioner argued that he qualified for the restricted-

residence exception to the firm-resettlement bar because of

persecution he suffered in France. Although the persecutors

were private actors, rather than government officials, we

concluded the petitioner had established “at least a plausible

claim” that he had not firmly resettled in France. Id. at 1140.

In reaching that conclusion, we relied on the straightforward

principle that “firmly resettled aliens are by definition no

longer subject to persecution.” Id. (quoting Yang v. INS,

79 F.3d 932, 939 (9th Cir. 1996)).

We applied the same principle in Arrey. The petitioner

in that case, a Cameroonian woman, had fled her home

country to escape domestic violence and relocated to South

Africa, where she received refugee status. 916 F.3d at 1154–

55. In South Africa, however, the petitioner was robbed and

stabbed, and her brother, also a South Africa resident, was

shot and killed. Id. at 1155. The petitioner eventually fled

to the United States and applied for asylum. Id. The IJ

denied her application, in part, on the ground that she had

firmly resettled in South Africa, and the Board agreed. Id.

at 1155–57.

On appeal, we concluded the Board erred in applying the

firm-resettlement bar. Although the Board conducted the

14 ADEN V. WILKINSON

first step of the inquiry (whether the petitioner received an

offer of permanent settlement), we concluded it erred by

declining to conduct the second step (whether she qualified

for an exception to the bar because she suffered persecution

in South Africa). Id. at 1159. We explained the Board

should have considered incidents alleging past persecution

by nongovernmental actors, because “[t]hat evidence could

rebut the finding of firm resettlement.” Id. at 1159–60. We

did not hesitate to reach this conclusion even though the

alleged persecutors were nongovernment actors. See id.

Once again, in reaching this conclusion, we relied on the

well-established credendum that “firmly resettled aliens are

by definition no longer subject to persecution.” Id. at 1159–

60 (quoting Yang, 79 F.3d at 939). We thus remanded to

afford the Board an opportunity to conduct fully its firm-

resettlement analysis in light of the petitioner’s allegations

of past persecution. Id. at 1160.

Given this precedent, we reaffirm that a government’s

failure to address persecution, despite knowing about it,

constitutes a restriction of one’s living conditions “by” the

country’s authorities. See § 208.15(b); Arrey, 916 F.3d at

1160; Siong, 376 F.3d at 1040; Yang, 79 F.3d at 939. 5 We

5

This approach also comports with 8 C.F.R. § 208.15(b)’s

requirement that courts consider the applicant’s living conditions relative

to those of “other residents”—a determination that necessarily requires

consideration of what conditions the applicant does not enjoy. The same

approach applies to other required considerations, such as determining

what kind of housing or employment was “made available” to the

refugee; these inquiries necessarily require a consideration of the

housing and employment not made available to the refugee. Each

example of what was not done or what was not made available—despite

being examples of a government’s failure to act, rather than an

affirmative act—would still constitute a restriction on living “by” a

country’s authorities.

ADEN V. WILKINSON 15

reach the same conclusion even when the persecutors are

nongovernment actors, so long as the applicant also shows

that the country’s authorities were unable or unwilling to

stop the persecution. Any other conclusion would be

irreconcilable with the regulation’s plain text and our

precedent.

Thus, the Board erred by concluding that Aden did not

qualify for a firm-resettlement exception because the

persecution he suffered was perpetrated by nongovernment

actors. On remand the Board should consider—now with

the appropriate legal framework—whether he was firmly

resettled in South Africa. 6

IV. Asylum from Somalia

We next address the Board’s conclusion that Aden did

not suffer persecution in Somalia. “[T]o establish eligibility

for asylum on the basis of past persecution, an applicant

must show: (1) an incident, or incidents, that rise to the level

of persecution; (2) that is ‘on account of’ one of the

statutorily-protected grounds; and (3) is committed by the

government or forces the government is either ‘unable or

unwilling’ to control.” Chand v. INS, 222 F.3d 1066, 1073

(9th Cir. 2000) (quoting Navas v. INS, 217 F.3d 646, 655–

56 (9th Cir. 2000)). “We will reverse the BIA’s decision that

an applicant is ineligible for asylum only if ‘a reasonable

fact-finder would have to conclude that the requisite fear of

persecution existed.’” Id. (quoting INS v. Elias-Zacarias,

502 U.S. 478, 481 (1992)).

6

In light of the BIA’s affirmance of the IJ’s finding that Aden was

persecuted in South Africa, however, it would seem illogical for the

Board to conclude that Aden was firmly resettled.

16 ADEN V. WILKINSON

A. Incidents Rising to Persecution

We define persecution as “the infliction of suffering or

harm upon those who differ (in race, religion or political

opinion) in a way regarded as offensive.” Ghaly v. INS,

58 F.3d 1425, 1431 (9th Cir. 1995) (quoting Prasad v. INS,

47 F.3d 336, 339 (9th Cir. 1995)). Persecution is an

“extreme concept that does not include every sort of

treatment our society regards as offensive.” Id. (citation

omitted). “The key question is whether, looking at the

cumulative effect of all the incidents a petitioner has

suffered, the treatment she received rises to the level of

persecution.” Korablina v. INS, 158 F.3d 1038, 1044 (9th

Cir. 1998).

We have consistently held that “[p]hysical harm has . . .

been treated as persecution.” Chand, 222 F.3d at 1073;

accord Li v. Holder, 559 F.3d 1096, 1107 (9th Cir. 2009)

(recognizing it is well-established that physical violence

constitutes persecution). At the same time, we have

recognized that a one-off physical beating did not compel a

finding of persecution, even if, in our independent view, a

reasonable factfinder could conclude such a beating rose to

the level of persecution. See, e.g., Prasad v. INS, 47 F.3d

336, 339–40 (9th Cir. 1995); Gu v. Gonzales, 454 F.3d 1014,

1020 (9th Cir. 2006). Nonetheless, when the incidents have

involved physical harm plus something more, such as

credible death threats, we have not hesitated to conclude that

the petitioner suffered persecution. See Smolniakova v.

Gonzales, 422 F.3d 1037, 1049 (9th Cir. 2005) (“Repeated

death threats, especially when those threats occurred in

conjunction with other forms of abuse, require a finding of

past persecution.”); Duarte de Guinac v. INS, 179 F.3d 1156,

1162 (9th Cir. 1999) (“No case or statute provides that

physical harm and death threats [do not rise to the level of]

ADEN V. WILKINSON 17

persecution—quite the contrary.”); see also Borja v. INS,

175 F.3d 732, 736–37 (9th Cir. 1999) (en banc) (concluding

that record compelled finding of past persecution where

petitioner suffered injury and death threat), superseded by

statute on other grounds as stated in Parussimova v.

Mukasey, 555 F.3d 734, 739–40 (9th Cir. 2009); Sangha v.

INS, 103 F.3d 1482, 1487 (9th Cir. 1997) (recognizing that

death threats were sufficient to establish persecution).

“What matters,” in assessing the sufficiency of the threat to

establish persecution, “is whether the group making the

threat has the will or the ability to carry it out”—not whether

it is, in fact, carried out. Kaiser v. Ashcroft, 390 F.3d 653,

658–59 (9th Cir. 2004) (quoting Bolanos-Hernandez v. INS,

767 F.2d 1277, 1285 (9th Cir. 1984)). Another important

consideration is whether the threat leaves the person with no

realistic choice but to conform to the persecutor’s way of life

and forsake other political or religious beliefs, or flee. See

Kantoni v. Gonzales, 461 F.3d 894, 898 (7th Cir. 2006) (“A

credible threat that causes a person to abandon lawful

political or religious associations or beliefs is persecution.”).

Last, we have held that an asylum applicant’s claim of

persecution is further strengthened when evidence that the

applicant was physically beaten and threatened with his life

is presented in conjunction with evidence of the country’s

“political and social turmoil.” Korablina, 158 F.3d at 1045;

see also Kaiser, 390 F.3d at 658 (“Threats on one’s life,

within a context of political and social turmoil or violence,

have long been held sufficient to satisfy a petitioner’s burden

of showing an objective basis for fear of persecution.”).

Importantly, “[e]ven if a single incident does not rise to the

level of persecution, the cumulative effect of these several

incidents constitutes persecution.” Smolniakova, 422 F.3d

at 1049.

18 ADEN V. WILKINSON

Here, the IJ determined, and the Board agreed, that Aden

had not suffered persecution in Somalia because he

presented only evidence of a “one-time incident” involving

a physical beating while working at his brother’s theater.

The Board further concluded—wrongly—that Aden’s

brother received threats after the raid on the theater, but

Aden did not.

These determinations were not supported by substantial

evidence, and Aden presented sufficient evidence to compel

the conclusion that he suffered persecution at the hands of

Al-Shabaab. Ten members of Al-Shabaab raided the theater

that he and his brother operated, physically beat Aden, and

cudgeled him on the head with the butt of a rifle, causing him

to bleed profusely. Al-Shabaab also stole theater equipment,

ensuring the theater would remain closed. To hide from Al-

Shabaab, Aden and his brother moved to their uncle’s home,

where they made plans to flee the country. Two weeks after

the raid, Aden’s brother received a phone call threatening

him that if they reopened the theater, both he and Aden

would be killed—not just Aden’s brother, as the Board

found. Aden and his brother did not reopen the theater,

remained in hiding, and fled Somalia two months later.

Although a one-off, minor physical assault followed by

a life of unrestrained religious practice or political

expression may not compel the conclusion that a person has

suffered persecution, see Prasad, 47 F.3d at 339–40; Gu,

454 F.3d at 1020, Aden has presented a far more compelling

case. In addition to physically beating Aden, members of

Al-Shabaab kept tabs on him by contacting his brother and

warned they would kill Aden and his brother if they

continued to disobey Al-Shabaab’s command. See Kaiser,

390 F.3d at 658; Duarte de Guinac, 179 F.3d at 1162; Borja,

ADEN V. WILKINSON 19

175 F.3d at 736–37; Sangha, 103 F.3d at 1487. 7 Unlike

situations where the government evinced no lingering

interest in the victim, the record evidence here shows that

members of Al-Shabaab kept a close eye on Aden, his

brother, and their political and religious activities. The death

threat further left Aden with the “bleak choice” of remaining

steadfast in his way of life (and risking death) or succumbing

to Al-Shabaab’s demand for conformity. See Kantoni,

461 F.3d at 897–98. Such a chain of events reveals that Al-

Shabaab intended to coerce Aden to submit to its new

political and religious order, and used offensive strategies—

beatings, destruction of property, and death threats—to

achieve this goal.

Further, as the IJ recognized, Aden presented evidence

that Somalia continued to experience political and social

turmoil, given that Al-Shabaab “remains a major force in the

country, and a danger to many, including in . . . [the region

Aden is from].” 8 See Korablina, 158 F.3d at 1045. This

7

The Board mistakenly relied on Hoxha v. Ashcroft, 319 F.3d 1179

(9th Cir. 2003), in affirming the IJ’s denial of Aden’s asylum claim.

There, unlike here, the applicant was subjected to a lifetime of unfulfilled

threats by various Serbs and then suffered a one-time beating that was

“not connected with any particular threat.” Id. at 1182.

8

See, e.g., Human Rights Watch World Report (2016)

(“Government forces failed to protect civilians, including journalists,

clan elders, clerics and lawmakers and other officials from targeted

killings by Al-Shabab as well as by unknown gunmen, primarily in

Mogadishu, Baidoa, the capital of the Bay region, and Beletweyn, the

capital of Hiraan.”); Human Rights Watch, UN Human Rights Council:

Interactive Dialogue with the Independent Expert on the situation in

Somalia (Sept. 30, 2015), https://www.hrw.org/news/2015/09/30/un-

human-rights-council-interactive-dialogue-independent-expert-situation

-somalia (“This year has seen massive civilian displacement as well as

20 ADEN V. WILKINSON

additional evidence provides the context for the harm and

death threats that Aden experienced at the hands of Al-

Shabaab. Together, this evidence compels the conclusion

that Aden suffered persecution while in Somalia.

B. Nexus

To prevail on an asylum claim, an applicant must also

demonstrate that the persecution was “on account of” a

statutorily protected ground. Parussimova, 555 F.3d at 739.

To meet this “nexus” requirement, an applicant must show

that the protected ground was “at least one central reason”

the applicant was persecuted. 8 U.S.C. § 1158(b)(1)(B)(i).

“[A] motive is a ‘central reason’ if the persecutor would not

have harmed the applicant if such motive did not exist.”

Parussimova, 555 F.3d at 741. Motive can be established by

a persecutor’s statements to the victim. See Lopez v.

Ashcroft, 366 F.3d 799, 804 (9th Cir. 2004). The motive

may also be inferred if the factual circumstances alone

demonstrate “no other logical reason for the persecution at

issue.” Navas, 217 F.3d at 657. Further, “[i]f the persecutor

attributed a political opinion to the victim, and acted upon

the attribution, this imputed view becomes the applicant’s

political opinion.” Xinbing Song v. Sessions, 882 F.3d 837,

841 (9th Cir. 2017) (quoting Sangha, 103 F.3d at 1489). In

a similar vein, we have held that a person who is persecuted

in response to the person’s “resistance to discriminatory

government action . . . is persecution on account of a

protected ground.” Chand, 222 F.3d at 1077; see also Desir

v. Ilchert, 840 F.2d 723, 727–28 (9th Cir. 1988) (recognizing

that, although a requirement to pay money to quasi-

governmental forces may not on its own amount to

civilian casualties from targeted and indiscriminate attacks. Al-Shabab

militants continue to target civilians.”).

ADEN V. WILKINSON 21

persecution, punishment for refusing to pay amounts to

persecution on account of a protected ground).

The IJ determined, and the Board agreed, that the attack

on Aden was not “on account of” Aden’s political opinion or

religious beliefs because Al-Shabaab was motivated out of

its political and religious beliefs, not Aden’s. Substantial

evidence does not support this determination. Members of

Al-Shabaab twice contacted Aden’s brother and ordered him

to stop showing American and Hindi films because, in their

view, such films were “Satanic” and forbidden in Islam.

When Aden and his brother ignored that instruction, Al-

Shabaab raided the theater, beat them, and later threatened

to kill them if they reopened it. Al-Shabaab’s accusation that

the brothers were featuring Islamically forbidden, “Satanic”

films provides direct evidence of their political and religious

motives. See Lopez, 366 F.3d at 804 (finding that

Guatemalan guerillas’ statement to petitioner that he should

not work for the wealthy provided direct proof of motive).

Further, even if the brothers did not feature the films out

of their own political or religious convictions, Al-Shabaab at

the very least imputed those beliefs to them. See Xinbing

Song, 882 F.3d at 841–42 (explaining that government

accusation that petitioner was “anti-government” was

sufficient to show the officials imputed a political opinion to

the applicant). Thus, the only logical explanation for Al-

Shabaab’s treatment of Aden and his brother was that their

actions were subversive to Al-Shabaab’s political and

religious doctrine. See id.; see also Chand, 222 F.3d at 1077;

Desir, 840 F.2d at 727–28.

In reaching the opposite conclusion, the Board cited the

Supreme Court’s decision in Elias-Zacarias. This reliance

was misplaced. There, the Court considered only whether a

guerrilla organization’s forcible conscription policy

22 ADEN V. WILKINSON

constituted per se persecution “on account of” political

opinion. 502 U.S. at 479. The Court held it did not. Id.

at 484. In doing so, the Court reasoned that a person might

refuse to join a guerilla movement “for a variety of

reasons”—even if they supported the movement—such as

“fear of combat, a desire to remain with one’s family and

friends, [or] a desire to earn a better living in civilian life.”

Id. at 482. The Court further rejected the theory that the

guerrillas’ political motives could satisfy the nexus

requirement because, the Court explained, the persecution

must be “on account of the victim’s political opinion, not the

persecutor’s.” Id. at 482. Importantly—and unlike here—

the asylum applicant was not punished for refusing to join or

otherwise engaged in actions perceived as subversive. Elias-

Zacarias thus does not apply.

Because the record evidence would compel any

reasonable factfinder to conclude that Aden suffered

persecution on account of a protected ground, we grant the

petition on this basis.

C. Well-founded Fear

Because Aden has shown that he suffered past

persecution, he enjoys a presumption that if he returns to

Somalia, he will be persecuted in the future. See 8 C.F.R.

§§ 208.13(b)(1)(i), (ii); Chand, 222 F.3d at 1078.

“[B]ecause neither the IJ nor the BIA found that the harm

[Aden] suffered rose to the level of persecution, they did not

accord [Aden] the presumption, and therefore did not

consider whether changed conditions in [Somalia] were

sufficient to rebut it.” See Chand, 222 F.3d at 1078. We

thus remand to allow the government an opportunity to rebut

the presumption by showing changed country conditions.

See INS v. Orlando Ventura, 537 U.S. 12, 16–18 (2002) (per

curiam).

ADEN V. WILKINSON 23

V. Withholding of Removal from Somalia

To be eligible for withholding of removal, an applicant

must show that the evidence in the record demonstrates a

“clear probability of persecution.” Korablina, 158 F.3d

at 1045. A clear probability exists if it is “more likely than

not” the person will be persecuted upon return. Id. at 1046

(citing Cardoza-Fonseca v. INS, 767 F.2d 1448, 1452 (9th

Cir. 1985) and 8 C.F.R. § 208.16(b)(1)). “A finding of past

persecution triggers a regulatory presumption that the

applicant’s ‘life or freedom would be threatened if

deported.’” Id. (quoting Vallecillo-Castillo v. INS, 121 F.3d

1237, 1240 (9th Cir. 1996)). To rebut this presumption, the

government must show by a preponderance of the evidence

that country conditions have so changed that it is no longer

likely that the applicant would be persecuted there. See

Vallecillo-Castillo, 121 F.3d at 1240.

Because Aden showed that he suffered past persecution,

he was entitled to a presumption that his “life or freedom

would be threatened if deported.” See id. (citation and

quotation marks omitted). We thus remand to the Board to

address this claim. See Orlando Ventura, 537 U.S. at 16–18.

VI. Conclusion

For the above reasons, we grant Aden’s petition and

remand for further proceedings consistent with this opinion.

GRANTED and REMANDED.

24 ADEN V. WILKINSON

RAWLINSON, Circuit Judge, concurring:

I concur in the conclusion that this case should be

remanded for reconsideration of the firm resettlement issue.

I also agree that the Immigration Judge (IJ) failed to address

in the context of firm resettlement the persecution

experienced by Petitioner Abdi Asis Ali Aden (Aden) in

South Africa.

The firm resettlement bar prevents the grant of asylum to

an applicant who has firmly resettled in a different country

before arriving in the United States. See Nahrvani v.

Gonzales, 399 F.3d 1148, 1151 (9th Cir. 2005). The

governing regulation at the relevant time period provided:

An alien is considered to be firmly resettled

if, prior to arrival in the United States, he or

she entered into another country with, or

while in that country received, an offer of

permanent resident status, citizenship, or

some other type of permanent resettlement

unless he or she establishes:

(a) That his or her entry into that country was

a necessary consequence of his or her flight

from persecution, that he or she remained in

that country only as long as was necessary to

arrange onward travel, and that he or she did

not establish significant ties in that country;

or

(b) That the conditions of his or her residence

in that country were so substantially and

consciously restricted by the authority of the

ADEN V. WILKINSON 25

country of refuge that he or she was not in

fact resettled. . . .

8 C.F.R. § 1208.15 (2019).

Although not addressed in the context of firm

resettlement, the IJ made the following detailed findings

regarding the persecution endured by Aden in South Africa:

[Aden] testified that he worked as a

shopkeeper in his cousin’s store. . . . The

first time [he] experienced problems in South

Africa was in December 2012. On that day,

. . . many people who were protesting

immigrants in South Africa came to the

store. . . . The protesters were angry at

Somalis . . . and other immigrants that lived

in South Africa. [Aden] tried to stop the

protesters from taking things from the store

and was injured in the process. He was

beaten with wood sticks, but was able to flee.

The protesters then lit the store on fire and the

store had to be rebuilt. . . .

[Aden] testified that in March 2013, late

at night, [he] was asleep in the store and heard

a noise. When [he] went to see what had

caused the noise he saw 3–4 men inside the

store. The men began to beat [Aden] and the

other man there . . . with wooden sticks. . . .

The men said to [Aden], “you guys are illegal

aliens, you guys have no rights, and you have

no rights to this business. . . .” [Aden] and

his cousin reported the incident to the South

African police. . . . But the South African

26 ADEN V. WILKINSON

police did not do anything to investigate after

the report was filed.

...

[Aden] testified that in December 2014,

while [he] was working at the store, two men

“who were thieves” came into the store with

guns. They pushed the other worker on the

ground and threatened to kill [Aden]. . . .

The men said to [Aden], “you are the Somalis

and you do not have rights in this country.”

[Aden] reported the incident to the South

African police. . . . However, he never heard

anything else from the police.

The IJ found Aden to be a credible witness. The IJ also

acknowledged that Aden “submitted country conditions

evidence corroborating . . . anti-immigration sentiment and

violence in South Africa.” Finally, the IJ noted that:

[w]hile the government states it is opposed to

such anti-immigrant, anti-Somali violence, it

is unable to stop it, and at times [has] gone so

far as to deny that the attacks were anything

other than general criminal behavior. . . .

Members of the government, along with

other South African leaders, have also made

statements that appear to fuel the resentment

and lead to more violence.

The Board of Immigration Appeals (BIA) adopted the

IJ’s finding that Aden was credible, and found no clear error

in the IJ’s other factual findings. Despite the fact that the IJ

never addressed the issue of whether persecution by private

actors may prevent application of the firm resettlement bar,

ADEN V. WILKINSON 27

the BIA concluded that the firm resettlement bar applied to

Aden because he “did not introduce any evidence that the

South African government imposed any restrictions on his

residency such that the exception in 8 C.F.R. § 1208.15(b)

precluded him from being firmly resettled.” However, this

conclusion is not supported by substantial evidence in the

record, as reflected in the IJ’s factual findings. See Maharaj

v. Gonzales, 450 F.3d 961, 967 (9th Cir. 2006) (en banc)

(noting that we review a firm resettlement determination for

substantial evidence). As discussed, the IJ found that not

only did the South African police fail to investigate the

xenophobic attacks against Somalis in South Africa, the

South African government made statements that ostensibly

“fuel[ed] the resentment,” leading to additional violence.

These facts were sufficient to support a claim that Aden’s

residence in South Africa was “substantially and consciously

restricted by the authority of” South Africa such that Aden

was never firmly resettled in South Africa. 8 C.F.R.

§ 1208.15 (2019). Therefore, I agree with the majority that

this case should be remanded for the IJ to apply his findings

to the provisions of the regulation governing the resettlement

bar.

I also concur in the majority’s conclusion rejecting the

IJ’s and BIA’s determination that Aden failed to establish a

nexus to a protected ground for the attacks in Somalia. The

IJ described Aden’s testimony that he and his brother began

having problems with Al-Shabab, a terrorist organization

that seeks to “enforce its interpretation of Islam.” Aden

shares the Muslim religion with Al-Shabab, but disagrees

with its view of the proper interpretation of Islam. Aden’s

problems with Al-Shabab stemmed from his brother’s

operation of a movie theater showing “American and Hindi

movies and sports.” Al-Shabab objected to the showing of

these movies, because they “promoted sinful ideas such as

28 ADEN V. WILKINSON

showing women who were not fully covered.” We have

concluded that “[i]f an applicant can establish that others in

his group persecuted him because they found him

insufficiently loyal or authentic to the religious . . . ideal they

espouse, he has shown persecution on account of a protected

ground.” Maini v. I.N.S., 212 F.3d 1167, 1175 (9th Cir.

2000). Because of this binding precedent, I agree with the

majority that the opposite conclusion reached by the IJ and

BIA is not supported by substantial evidence.